702 F.

2d 380
8 Collier Bankr.Cas.2d 340

Anthony R. MARTIN-TRIGONA, Petitioner-Appellee,

v.
Alan SHIFF, Respondent-Appellant.
No. 131, Docket 82-2145.

United States Court of Appeals,

Second Circuit.
Argued Nov. 15, 1982.
Decided March 9, 1983.

Irving H. Perlmutter, New Haven, Conn. (Ullman, Perlmutter & Sklaver,

New Haven, Conn., of counsel), for Daniel Meister, Trustee of New
Haven Radio, Inc.
Richard Coan, Coan, Lewendon & Royston, New Haven, Conn., on brief,
for Richard Belford, Trustee of Anthony R. Martin-Trigona.
Anthony R. Martin-Trigona, pro se.
Before VAN GRAAFEILAND, MESKILL and PRATT, Circuit Judges.
MESKILL, Circuit Judge:

On January 15, 1982, Judge Shiff of the United States Bankruptcy Court for the
District of Connecticut found Anthony Martin-Trigona in civil contempt. Judge
Shiff ordered Martin-Trigona committed to the custody of the United States
Attorney General when he refused during the bankruptcy proceedings to
answer questions relating to the administration of his bankrupt estate and the
bankrupt estate of a corporation he owned. In re Martin-Trigona, 16 B.R. 792
(Bkrtcy.D.Conn.1982). On January 29, Martin-Trigona petitioned the district
court for a writ of habeas corpus alleging that the bankruptcy court lacked the
power to imprison him for civil contempt. District Judge Daly granted habeas
corpus relief and ordered Martin-Trigona released from custody. MartinTrigona v. Shiff, 19 B.R. 1001 (D.C.Conn.1982). The trustees in bankruptcy
brought this appeal.

Because we hold that the district court improvidently granted habeas corpus
relief, we do not reach the merits of petitioner's claim. Ordinarily, one cannot,
by a petition for a writ of habeas corpus, obtain review of an order that is
appealable either in state or federal court. Because Martin-Trigona failed to seek
leave to appeal the order adjudging him in civil contempt, it was error for the
district court to grant habeas corpus relief. Accordingly, we vacate the
judgment below and remand with instructions to dismiss the petition and to take
such further action as the district court deems appropriate on any certified
matters.BACKGROUND

Anthony Martin-Trigona is no stranger to the federal courts. His tour through

the court system is marked by a persistent refusal to cooperate with court orders
and purposeful efforts to delay and jaundice court proceedings. His distinctive
brand of pro se advocacy has reached this Court after a barrage of procedural
and jurisdictional challenges which have frustrated the courts below and have
caused these bankruptcy proceedings to advance at a snail's pace, with little
progress made toward settling creditors' claims during the past two and onehalf years.1

On September 10, 1980, Martin-Trigona, as owner and president of New Haven

Radio, Inc. (corporate estate), filed a petition for reorganization of the company
pursuant to 11 U.S.C. Sec. 1101 et seq. (Supp. III 1979) in the United States
Bankruptcy Court for the Southern District of New York. On or about
December 2, 1980, Martin-Trigona's personal estate also came under the
bankruptcy court's jurisdiction. In January 1981 his two bankruptcy cases were
ordered transferred to the United States Bankruptcy Court for the District of
Connecticut where they were placed on the docket of Bankruptcy Judge Shiff.
Martin-Trigona appealed the transfer order to the United States District Court
for the Southern District of New York. He filed the notice of appeal without
applying for a stay of the transfer order or seeking leave to appeal.2

Administration of the two estates commenced in Connecticut. The trustees

applied pursuant to Bankruptcy Rule 205(a) for an order to conduct an
examination of Martin-Trigona.3 When Martin-Trigona appeared pro se before
the bankruptcy court on January 15, 1982,4 he announced his resolve not to
participate in the examination because, in his opinion, the bankruptcy court
lacked jurisdiction over the cases while his appeal of the transfer order was
pending in the Southern District of New York. Martin-Trigona "invited" the
court to find him in civil contempt so that he could have his conduct certified to
the district court pursuant to Bankruptcy Rule 920(a)(4) 5 where he planned to
air his challenge to the jurisdiction of the bankruptcy court. Judge Shiff ordered
Martin-Trigona to answer the trustees' questions, and when he refused, the

court found him in civil contempt and committed him to the custody of the
attorney general. Judge Shiff reasoned that section 241(a) of the Bankruptcy
Reform Act of 1978 (Reform Act), Pub.L. No. 95-598, 92 Stat. 2549, 2668,
was intended by Congress to confer on bankruptcy judges the power to sanction
civil contempt by fine or imprisonment, see 28 U.S.C. Sec. 1481 (Supp. IV
1980), and that any limits on the bankruptcy judge's contempt powers under
Bankruptcy Rule 920(a) were inapplicable to the extent inconsistent with the
Reform Act. See Reform Act Sec. 405(d), 92 Stat. 2685.
6

On January 29, 1982, Martin-Trigona filed a petition for a writ of habeas

corpus in the United States District Court for the District of Connecticut.6 28
U.S.C. Sec. 2241 (1976). Oddly, the petition named Bankruptcy Judge Shiff as
defendant. On March 31, 1982, District Judge Daly ordered the trustees, as the
real parties-in-interest, and Judge Shiff, through the United States Attorney, to
respond and show cause why a writ of habeas corpus should not issue. The
trustees responded on April 2, 1982. The United States Attorney's Office
responded the same day, but declined to argue the merits of the habeas corpus
petition.7

Without hearing oral argument, Judge Daly filed a memorandum of decision on

April 19, 1982, concluding that the bankruptcy court was not empowered to
order a recalcitrant witness imprisoned for civil contempt.8 Martin-Trigona v.
Shiff, 19 B.R. 1001, 1003 (Dist.Ct.Conn.1982). Judgment was entered the
following day granting habeas corpus relief and ordering Martin-Trigona
released from custody.

Notice of appeal from the judgment was filed on April 22, 1982. The trustees of
the corporate and personal estates are on the brief in this appeal. In addition to
their contention that the bankruptcy judge was empowered under the Reform
Act to incarcerate Martin-Trigona for civil contempt, the trustees also complain
that the district court erred in granting habeas corpus relief without a hearing
and without providing the trustees an opportunity to present opposing claims of
law. Martin-Trigona has since filed several motions to dismiss this appeal.
Those motions are considered first.

DISCUSSION
A. Appeal, Jurisdiction and Justiciability
9

Martin-Trigona argues first that Judge Daly's decision is not a final judgment
and therefore is not appealable at this time. Additionally, he asserts that no
lawful appeal has been taken from the district court's order releasing him from

custody. Finally, he maintains that this controversy is now moot. Each of these
contentions is premised on what Martin-Trigona aptly characterizes as the
"tortured procedural history" of this "bizarre case." Martin-Trigona neglects to
mention his responsibility for the peculiarities of this appeal. We consider
herein only those arguments imbued with some arguable merit.
10

Martin-Trigona contends that the decision of Judge Daly is not a final judgment
for purposes of appealability. He asserts that subsequent actions taken by the
district court in connection with this case support his view.9 This argument is
meritless. An order granting habeas corpus relief is final and subject to
appellate review. 28 U.S.C. Sec. 2253 (1976); see Craig v. Hecht, 263 U.S.
255, 276-77, 44 S.Ct. 103, 106-107, 68 L.Ed. 293 (1923).

11

Martin-Trigona next argues that a proper appeal was never taken from Judge
Daly's order. This claim is also groundless. Notice of appeal from the judgment
granting Martin-Trigona's petition for a writ of habeas corpus was filed on
April 22, 1982. The notice was filed on behalf of the named defendant,
Bankruptcy Judge Shiff, and was signed by "Irving H. Perlmutter/Attorney for
the Defendant." Mr. Perlmutter is the attorney for the trustee of the corporate
estate. Martin-Trigona argues that Attorney Perlmutter is not Judge Shiff's
attorney, that he filed the appeal without Judge Shiff's consent, and that as a
consequence, no lawful appeal has been filed. We disagree. Although the
trustees were not named parties in the district court, they did participate in those
proceedings. In fact, the district court ordered both trustees, "being the real
parities [sic] in interest," to respond to Martin-Trigona's application for habeas
corpus relief.10 Record at Doc. 16. Cf. Beery v. Turner, 680 F.2d 705, 713
(10th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 449, 74 L.Ed.2d 604
(1982) (district court did not err in designating the trustee in bankruptcy to act
as plaintiff in hearing to determine the bankrupt's status).

12

"The general rule is that one who was not a party of record before the trial court
may not appeal that court's judgment." Washoe Tribe v. Greenley, 674 F.2d
816, 818 (9th Cir.1982). But there are situations where a nonparty is allowed to
appeal if the trial court's judgment has affected the nonparty's interest. West v.
Radio-Keith-Orpheum Corp., 70 F.2d 621, 623-24 (2d Cir.1934).

13

This Circuit's decision in West is on point. There a corporate receiver petitioned

the district court for an order approving modifications made to a corporate
obligation. An unsecured creditor of the corporation who received notice of the
petition appeared in the district court to object to the proposed order. After
several hearings, the district court granted the order. The disgruntled creditor
appealed even though he was not a party to the proceedings in the district court.

Judge Learned Hand observed that "generally speaking no person, not a party to
a suit, may appeal." Id. at 623; see Sperry Rand Corp. v. Bell Telephone
Laboratories, Inc., 317 F.2d 491, 493 (2d Cir.1963); United States v. McFaddin
Express, Inc., 310 F.2d 799, 801 (2d Cir.1962). Nevertheless, Judge Hand held
that the creditor should be allowed to appeal because he was brought into the
suit at the invitation of the court and because there was no doubt but that the
court's order affected his interests. West, 70 F.2d at 624.
14

Like the creditor in West, the trustees participated in the proceedings below by
filing, at the direction of the court, responses to Martin-Trigona's habeas corpus
petition. It was clear to the district court, as it is to us, that the trustees are the
real parties-in-interest. They have a legitimate interest in seeing to it that
Martin-Trigona testifies to the location of certain assets, books, and records that
are necessary to the administration of the estates. Because the trustees
participated in the proceedings below and because their interests were affected
by the district court's order, we find that the trustees have standing to bring this
appeal. S.E.C. v. Lincoln Thrift Association, 577 F.2d 600, 603 (9th Cir.1978).

15

There is another reason for permitting the trustees to pursue this appeal. Unlike
the decisions cited by Martin-Trigona in which the equities of the case weighed
against allowing non-parties to appeal, see Washoe Tribe v. Greenley, 674 F.2d
at 818; United States v. Conforte, 643 F.2d 641, 643 (9th Cir.1981), the
circumstances of this case strongly favor the trustees. After the district court
ordered the trustees to respond to Martin-Trigona's petition, all further
proceedings were stayed, thereby denying the trustees the opportunity to file
additional claims of law in opposition to the petition.11 The stay remained in
effect until April 19, 1982, when Judge Daly rendered his decision. Thus, after
the trustees were compelled to join in the proceedings as the real parties-ininterest, the district court foreclosed any meaningful participation by them.
Moreover, the stay imposed by the trial court made futile any effort by the
trustees to intervene under Fed.R.Civ.P. 24(c). See S.E.C. v. Lincoln Thrift
Association, 577 F.2d at 603. We view these circumstances as an additional
compelling reason for the Court to entertain an appeal by the trustees.

16

We next consider Martin-Trigona's claim that this appeal must be dismissed as

moot. The mootness doctrine is grounded on the case or controversy
requirement of Article III. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct.
402, 404, 30 L.Ed.2d 413 (1971). The hallmark of a moot case or controversy
is that the relief sought can no longer be given or is no longer needed. MartinTrigona identifies the controversy in this case as centering on the power of the
bankruptcy judge to imprison for civil contempt. In his view, this controversy
no longer exists because Bankruptcy Judge Shiff has now recused himself from

the case and because the bankruptcy court has, in response to Judge Daly's
order, certified the contemptuous conduct to the district court pursuant to
Bankruptcy Rule 920(a)(4).
17

Martin-Trigona misstates the nature of the controversy. The dispute is not

between Martin-Trigona and Judge Shiff; no relief is sought from Judge Shiff
personally. The true controversy is between Martin-Trigona and the trustees,
and it concerns Martin-Trigona's persistent and deliberate refusal to testify in
connection with the administration of his bankrupt personal and corporate
estates. Judge Shiff's decision to recuse himself from the underlying bankruptcy
cases clearly does not resolve the dispute between the trustees and MartinTrigona.

18

More troublesome is the bankruptcy court's certification of Martin-Trigona's

contemptuous conduct to the district court shortly after Judge Daly's decision.
Even this, however, does not moot the controversy because the relief granted
by Judge Daly is not irreversible, as our disposition of this appeal demonstrates.
Martin-Trigona is free solely because of Judge Daly's decision; his present
freedom is not guaranteed by the bankruptcy court's certification. We view the
certification as an attempt by the bankruptcy court to comply with Judge Daly's
ruling--a ruling contested by the trustees in this appeal. As to the trustees, the
controversy remains. The dispute will not be resolved until Martin-Trigona
purges himself of contempt. S.E.C. v. Radio Hill Mines Co., 479 F.2d 4, 7-8
(2d Cir.1973). The present appeal was properly submitted to this Court, is
within our jurisdiction, and presents a justiciable controversy.

B. Propriety of Habeas Corpus Relief

19

Martin-Trigona chose to challenge the bankruptcy court's order imprisoning

him for civil contempt with a petition for a writ of habeas corpus. The district
court appropriately viewed the petition as "an ill-suited vehicle for raising the
question .... The better procedure might have been for petitioner to appeal the
contempt order, but he has not done so." 19 B.R. at 1001. Judge Daly's
decision, although recognizing the problem, did not cure the procedural
infirmity. We hold that absent extraordinary circumstances, which are not
present here, all available routes of appeal must be exhausted before a person
imprisoned for civil contempt by a bankruptcy court can avail himself of
habeas corpus relief.

20

Prior to the Reform Act, the district courts had "original jurisdiction, ... of all
matters and proceedings in bankruptcy." 28 U.S.C. Sec. 1334 (1976), replaced
by 28 U.S.C. Sec. 1334 (Supp. II 1978). Under the new system created by the

Reform Act, the district courts have appellate jurisdiction over bankruptcy
court proceedings. Under 28 U.S.C. Sec. 1334(a) (Supp. IV 1980), the district
court has "jurisdiction of appeals from all final judgments, orders, and decrees
of bankruptcy courts." The district court also has jurisdiction to entertain
"appeals from interlocutory orders and decrees of bankruptcy courts" pursuant
to 28 U.S.C. Sec. 1334(b) (Supp. IV 1980), provided that an appeal from an
interlocutory order or decree must be "by leave of the district court to which the
appeal is taken." See International Horizons, Inc. v. Committee Of Unsecured
Creditors (In re International Horizons, Inc.), 689 F.2d 996, 999-1000 (11th
Cir.1982).
21

An order of civil contempt is generally thought to be interlocutory and

unreviewable until a final judgment has been entered. International Business
Machines Corp. v. United States, 493 F.2d 112, 114-15 & 117 (2d Cir.1973),
cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974).
Consequently, most courts have held that the jurisdiction of the court entering
an order of imprisonment for civil contempt could properly be challenged
through a petition for a writ of habeas corpus. See Watkins v. Rives, 125 F.2d
33, 41 (D.C.Cir.1941) ("habeas corpus may properly be used to challenge
jurisdiction of a court, it cannot be used to review inconsistencies or even errors
of law committed by a court of competent jurisdiction") (footnote omitted);
United States ex rel. Emanuel v. Jaeger, 117 F.2d 483, 487 (2d Cir.1941)
("Relator has appealed from neither the commitment nor the contempt order; he
therefore can raise here [on habeas corpus] the issue of jurisdiction only.");
United States ex rel. Paleais v. Moore, 294 F. 852, 855 (2d Cir.1923) ("only
matter which can now be considered [on habeas corpus] is the matter of the
lower court's jurisdiction at the time it made the order adjudging the relator in
contempt"), cert. denied, 264 U.S. 581, 44 S.Ct. 331, 68 L.Ed. 860 (1924);
United States ex rel. Birnbaum v. Henkel, 185 F. 553, 554 (2d Cir.1911)
("Habeas corpus, however, does not review the regularity of the order, but only
the validity of the commitment.").

22

Although habeas corpus traditionally has been accepted as the proper vehicle to
challenge the constitutionality of an order of imprisonment from which there is
no route of appeal, Sunal v. Large, 332 U.S. 174, 183, 67 S.Ct. 1588, 1593, 91
L.Ed. 1982 (1947); Ex parte Steiner, 202 F. 419, 421 (2d Cir.1913); Patterson
v. Lumbard, 16 F.R.D. 140 (S.D.N.Y.1954), habeas corpus is not a substitute
for an appeal, Craig v. Hecht, 263 U.S. 255, 277, 44 S.Ct. 103, 106, 68 L.Ed.
293 (1923).

23 proceeds on the theory that the erroneous decision of a court which has a right
This
to dispose of a controversy on the merits, as well as a decision where the court has

no jurisdiction to dispose of the question at all may be corrected directly by appeal

or writ of error. There is ordinarily no necessity for a writ of habeas corpus.
24

Ex parte Steiner, 202 F. at 421. In United States ex rel. Sutton v. Mulcahy, 169
F.2d 94 (2d Cir.1948), cert. denied, 337 U.S. 956, 69 S.Ct. 1526, 93 L.Ed. 1755
(1949), the district court was forced to commit a recalcitrant witness for civil
contempt. The contemnor bypassed his right to appeal. Instead, he filed a writ
of habeas corpus in the district court alleging that the court that entered the
contempt order lacked jurisdiction. The district court dismissed the petition and
this Court affirmed relying on the Supreme Court's restrictive approach to
appeals disguised as habeas corpus petitions.

25 situations in which habeas corpus has done service for an appeal are the
[T]he
exceptions. Thus where the jurisdiction of the federal court which tried the case is
challenged or where the constitutionality of the federal statute under which
conviction was had is attacked, habeas corpus is increasingly denied in case an
appellate procedure was available for correction of the error.
26

Sunal v. Large, 332 U.S. 174, 179, 67 S.Ct. 1588, 1591, 91 L.Ed. 1982 (1947)
(footnote omitted), quoted in United States ex rel. Sutton v. Mulcahy, 169 F.2d
at 96; see also Henry v. Henkel, 235 U.S. 219, 228-29, 35 S.Ct. 54, 56-57, 59
L.Ed. 203 (1914).

27

We recognize and adhere to the general rule that the writ of habeas corpus is
not a substitute for a regular route of appeal. The district court could have heard
an appeal from the order imprisoning Martin-Trigona for civil contempt. See In
re International Horizons, Inc., 689 F.2d at 1000. An appeal from an
interlocutory order of the bankruptcy court is permitted with leave of the
district court under 28 U.S.C. Sec. 1334(b) (Supp. IV 1980). If Martin-Trigona
questioned the jurisdiction of the bankruptcy court, he had a remedy, but that
remedy was to seek leave to appeal, not to petition for a writ of habeas corpus.
Cf. Maiorino v. Branford Savings Bank, 691 F.2d 89, 91 (2d Cir.1982). A
habeas corpus petition is the avenue of last resort, always available to safeguard
the fundamental rights of persons wrongly incarcerated. Ex parte Steiner, 202
F. 419, 421 (2d Cir.1913).

28

Where, as here, a regular route of appeal exists, habeas corpus will be allowed
in only exceptional cases. See Adams v. United States ex rel. McCann, 317
U.S. 269, 274-75, 63 S.Ct. 236, 239-240, 87 L.Ed. 268 (1942) (habeas corpus
appropriate for appeal on jurisdiction question where trial transcript unavailable
for appeal on other grounds); Riggins v. United States, 199 U.S. 547, 548-49,
26 S.Ct. 147, 148-149, 50 L.Ed. 303 (1905) ("Ordinarily the writ will not be

granted when there is a remedy by writ of error or appeal, yet in rare and
exceptional cases it may be issued, although such remedy exists."). In Walker
v. Chitty, 112 F.2d 79 (9th Cir.1940), two criminals convicted in the federal
district court and sentenced to imprisonment filed a petition for a writ of habeas
corpus challenging, in part, the jurisdiction of the district court. Although an
appeal from the judgments of conviction was available, the prisoners opted to
seek the writ instead. The district court dismissed the petition and the court of
appeals affirmed:
29

In the scheme of things, order requires that under the great majority of cases
certain regular procedure be followed, to the end that the instruments provided
accomplish the greatest good for the greatest number. The normal method of
reviewing a judgment of a court is by the prosecution of an appeal, and this is
the course which must be followed save in rare and exceptional circumstances.

30

Id. at 82.

31

A similar situation is presented in the instant case. We understand that in rare

circumstances a litigant may be unsure whether there is an open avenue of
appeal. This is not such a case. If Martin-Trigona questioned the jurisdiction of
the bankruptcy court, his first resort should have been to seek leave to appeal.
See Warring v. Colpoys, 122 F.2d 642, 644-45 (D.C.Cir.), cert. denied, 314
U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543 (1941). We recognize his pro se status and
appreciate the problems inherent in occupying that position, but we will not
stretch the rules to accommodate a person who, like Martin-Trigona, is a law
school graduate and who has amply demonstrated his familiarity with the
bankruptcy law and the rules of procedure. See Sunal v. Large, 332 U.S. 174,
177, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947) ("It cannot be said that absence
of counsel made the appeals unavailable as a practical matter."); note 4 supra.
There are no special circumstances revealed by the record, other than those
caused by Martin-Trigona's own conduct, to justify a departure from regular
procedure. Because Martin-Trigona filed a petition for a writ of habeas corpus
without seeking leave to appeal, his petition should have been dismissed by the
district court.12

CONCLUSION
32

The judgment of the district court is vacated. We remand this case to the district
court to dismiss the petition for a writ of habeas corpus and for further
proceedings on any certified matters. The mandate shall issue forthwith.

VAN GRAAFEILAND, Circuit Judge, concurring:

33

Because I agree that, under the circumstances of this case, the writ was
improvidently granted by the district court, I agree that it should be vacated.
Assuming for the argument that the bankruptcy court was without power to
order petitioner confined, that power clearly existed in the district court under
former Section 41, 11 U.S.C. Sec. 69 (1968). Certification by the bankruptcy
judge or referee was not a prerequisite to the exercise of that power, if the
district court otherwise had jurisdiction. United States ex rel. Birnbaum v.
Henkel, 185 F. 553 (Cir.Ct.S.D.N.Y.1911); see O'Hagan v. Blythe, 354 F.2d
83, 84 (2d Cir.1965). The district court's failure to compel petitioner to comply
with his legal obligations already has resulted in a full year's delay in the
bankruptcy proceedings.

34

There has been enough obstruction and delay in this matter. If the bankruptcy
court cannot incarcerate for contempt, the district court can.

Martin-Trigona is not your typical pro se advocate. The bankruptcy court noted
that he is "a graduate of law school, [and has] demonstrated throughout several
days of proceedings and innumerable motions, applications and briefs that he
was knowledgeable in the bankruptcy field." 16 B.R. at 793. Martin-Trigona's
name has appeared on the docket of nearly every district judge as well as
bankruptcy judge in the District of Connecticut. The Seventh Circuit was faced
with Martin-Trigona's bad faith refusal to answer questions concerning his
assets, Martin-Trigona v. Gouletas, 634 F.2d 354, 360 (7th Cir.) (per curiam),
cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980), and his
motion to disqualify all the judges of the court of appeals. Id. at 355 n. 1; see
also United States v. Martin-Trigona, 684 F.2d 485, 490 n. 6 (7th Cir.1982).
We note that he has tried a similar tactic in the district court here

Although Martin-Trigona filed a notice of appeal from the transfer order, he

failed to apply for a stay of the order pursuant to Bankruptcy Rule 805 and
failed to seek leave to appeal the interlocutory transfer order pursuant to 28
U.S.C. Sec. 1334(b) (Supp. II 1978). The appeals were assigned to the docket
of Edward Weinfeld, J., under the numbers 81 Civ. 2628 & 6526

Bankruptcy Rule 205(a) provides:

(a) Examination on Application. Upon application of any party in interest, the
court may order the examination of any person. The application shall be in
writing unless made during a hearing or examination or unless a local rule

otherwise provides.
4

At the time his bankruptcy cases were filed, Martin-Trigona was imprisoned in
a federal correctional facility in Illinois on a 1980 mail fraud conviction.
Bankruptcy Rule 913 empowers the bankruptcy judge to "issue a writ of habeas
corpus when appropriate to bring a person before the court for examination or
to testify." See 28 U.S.C. Sec. 2256 (Supp. II 1978)

Bankruptcy Rule 920(a) sets forth guidelines governing contempt proceedings.

It in effect superseded Sec. 41(a) of the Bankruptcy Act of 1898 which
governed the bankruptcy referee's contempt powers. The Rule provides:
(a) Contempt Committed in Proceedings Before Referee.
(1) Summary Disposition by Referee. Misbehavior prohibited by Sec. 41a(2) of
the Act may be punished summarily by the referee as contempt if he saw or
heard the conduct constituting the contempt and it was committed in his actual
presence. The order of contempt shall recite the facts and shall be signed by the
referee and entered of record.
(2) Disposition by Referee upon Notice and Hearing. Any other conduct
prohibited by Sec. 41a of the Act may be punished by the referee only after
hearing on notice. The notice shall be in writing and shall state the time and
place of hearing, allowing a reasonable time for the preparation of the defense,
and shall state the essential facts constituting the contempt charged and
whether the contempt is criminal or civil or both. The notice may be given on
the referee's own initiative or on motion by a party, by the United States
attorney, or by an attorney appointed by the referee for that purpose. If the
contempt charged involves disrespect to or criticism of the referee, he is
disqualified from presiding at the hearing except with the consent of the person
charged.
(3) Limits on Punishment by Referee. A referee shall not order imprisonment
nor impose a fine of more than $250 as punishment for any contempt, civil or
criminal.
(4) Certification to District Judge. If it appears to a referee that conduct
prohibited by Sec. 41a of the Act may warrant punishment by imprisonment or
by a fine of more than $250, he may certify the facts to the district judge. On
such certification the judge shall proceed as for a contempt not committed in
his presence.

Soon after his habeas corpus petition was filed, the United States Court of
Appeals for the Seventh Circuit ordered Martin-Trigona released from custody

pending appeal of his mail fraud convictions. See note 4 supra. At that point,
Judge Shiff's civil contempt order was the sole reason for Martin-Trigona's
continued confinement. Martin-Trigona ultimately succeeded in having his
mail fraud convictions reversed and the case remanded on the grounds that he
was denied representation of counsel at trial. United States v. Martin-Trigona,
684 F.2d 485, 487 (7th Cir.1982)
7

The United States Attorney's Office took no position with regard to MartinTrigona's habeas corpus petition because, pursuant to directives of the Attorney
General:
[T]he Justice Department may not represent a judicial officer in a civil
proceeding which is in the nature of an appeal to overturn a decision of the
officer rendered in favor of one of the private litigants. The reason for such a
determination is that no relief, monetary or otherwise, is sought against the
judicial officer in his personal capacity. The United States is not a party to the
civil action and the party in whose favor the decision is made is the real party
in interest.
Record at Doc. 4.

The Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549,
replaced the aged Bankruptcy Act of 1898 with a comprehensive and uniform
set of substantive and procedural law governing bankruptcies throughout the
United States. The Reform Act established for each federal judicial district a
United States Bankruptcy Court, 28 U.S.C. Sec. 151(a) (Supp. IV 1980), and
empowered that court to exercise jurisdiction over a wider range of cases than
formerly allowed under the referee system, 28 U.S.C. Sec. 1471(b) (Supp. IV
1980). Judges of the bankruptcy courts now wield all "the powers of a court of
equity, law, and admiralty, but may not enjoin another court or punish a
criminal contempt not committed in the presence of the judge of the court or
warranting a punishment of imprisonment." 28 U.S.C. Sec. 1481 (Supp. IV
1980)
Under section 41 of the Bankruptcy Act of 1898, bankruptcy referees could not
order imprisonment for civil contempt. Under Bankruptcy Rule 920(a)(3),
which supplanted section 41, the referee was empowered to impose sanctions
for civil contempt except that he could not order imprisonment or impose a fine
in excess of $250. These sanctions could be imposed only by the district court
on certification from the referee under Bankruptcy Rule 920(a)(4). The Reform
Act repealed the 1898 Act, Sec. 401(a), 92 Stat. 2682, but left intact the
Bankruptcy Rules to the extent they did not conflict with the Reform Act and
until they were repealed or superseded, Sec. 405(d), 92 Stat. 2685. The old

referee system was replaced with a nationwide network of bankruptcy courts

staffed with non-Article III judges. See Northern Pipeline Constr. Co. v.
Marathon Pipe Line Co., --- U.S. ----, ----, 102 S.Ct. 2858, 2866, 73 L.Ed.2d
598 (1982). Section 241(a) of the Reform Act conferred on the newlyestablished courts all "the powers of a court of equity, law, and admiralty." 28
U.S.C. Sec. 1481 (Supp. IV 1980).
Judge Daly recognized that "the powers of a court of equity, law and admiralty"
include the power to order imprisonment for civil contempt. 19 B.R. at 1002;
see 28 U.S.C. Sec. 1826 (1976). He also recognized the obvious conflict
between the powers conferred on the bankruptcy courts by section 241(a) of the
Reform Act, 28 U.S.C. Sec. 1481 (Supp. IV 1980), and the limitations on
contempt power imposed by Bankruptcy Rule 920(a)(3). He resolved the
conflict in favor of the latter.
Although the Reform Act declares that its provisions prevail over any
inconsistent rules under the prior act, Sec. 405(d), 92 Stat. 2685, Judge Daly
discounted this indefinite command because he "doubt[ed] that Congress'
general grant of power in Sec. 1481 [was] sufficiently specific to increase so
dramatically the scope of contempt powers from what they were when Rule
920 was unchallenged by Sec. 1481." 19 B.R. at 1002. He concluded that Rule
920 could not be discarded absent a "clear statement of intent from Congress"
to abrogate the Rule. He could not find one.
The entire statutory scheme of the Reform Act has been shaken by the Supreme
Court's decision in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., --U.S. ----, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The Court in Northern
Pipeline ruled unconstitutional at least that part of the jurisdictional section of
the Reform Act, Sec. 241(a), 92 Stat. 2668, which granted the bankruptcy
courts original jurisdiction over all "civil proceedings arising under title 11 or
arising in or related to cases under title 11." 28 U.S.C. Sec. 1471(b) (Supp. IV
1980). In the Court's opinion, "Art. III bars Congress from establishing
legislative courts to exercise jurisdiction over all matters related to those arising
under the bankruptcy laws." At ----, 102 S.Ct. at 2874. The Court stayed its
judgment until October 4, 1982, and later stayed it again through December 24,
1982, to allow Congress time to remedy the deficiencies in the Reform Act. To
date, Congress has not acted.
While this case involves a different provision of Sec. 241(a) of the Reform Act
(28 U.S.C. Sec. 1481) than that at issue in Northern Pipeline (28 U.S.C. Sec.
1471(a)), the broad language of the Court's opinion raises doubts as to the
constitutionality of 28 U.S.C. Sec. 1481 (Supp. IV 1980). See Lindsey v. Cryts,
24 B.R. 930 (D.C.E.D.Ark.1982) (non-Art. III courts cannot constitutionally be

vested with full power to sanction civil contempt). However, we agree with the
conclusion of the United States Court of Appeals for the District of Columbia
Circuit: when the Supreme Court stated that its decision would "apply only
prospectively," --- U.S. at ----, 102 S.Ct. at 2879, it intended the decision not to
"affect bankruptcy court decisions pending on appeal before June 28, 1982, the
date of the Supreme Court opinion." Barnes v. Whelan, 689 F.2d 193, 196 n. 1
(D.C.Cir.1982). Martin-Trigona's habeas corpus petition, which called into
question the correct interpretation of 28 U.S.C. Sec. 1481, was filed on January
29, 1982, well before Northern Pipeline was handed down.
9

There have been no further proceedings taken by Judge Daly in connection with
this case. Martin-Trigona mistakenly characterizes orders pertaining to the
underlying bankruptcy proceedings and appeals therefrom as "further
proceedings" in connection with this habeas corpus action

10

We are not persuaded that Bankruptcy Rule 920(a)(2) affects the trustees' right
to appeal. Contemptuous behavior is punishable under Bankruptcy Rule 920(a)
(2) after hearing on notice by the bankruptcy referee, by the United States
Attorney, or by an attorney appointed by the referee for that purpose. The
trustees are none of the above. But this case is not a contempt proceeding for
that purpose. We are not asked to consider in this appeal whether MartinTrigona's conduct in the bankruptcy court was contemptuous. We are asked
whether the bankruptcy judge was empowered to order imprisonment for civil
contempt. We find no indication in the Bankruptcy Rules that the restrictions of
Rule 920(a)(2) apply to this case. We do find support for the trustees' right to
appeal Judge Daly's decision. Bankruptcy Rule 610 provides:
The trustee or receiver may, with or without court approval, prosecute or enter
his appearance and defend any pending action or proceeding by or against the
bankrupt, or commence and prosecute any action or proceeding in behalf of the
estate, before any tribunal.

11

Several days after responses were filed to Martin-Trigona's habeas corpus

petition by the trustees and the United States Attorney's Office, Judge Daly
learned of a lawsuit that had been filed by Martin-Trigona naming all judges of
the district court in the District of Connecticut as defendants. Martin-Trigona v.
Clarie, No. 82-158 (D.Conn. filed Apr. 2, 1982). Accordingly, Judge Daly
issued an order staying further proceedings on the habeas corpus petition until
the claims in No. 82-158 were resolved. Record at Doc. 19. When it became
apparent to Judge Daly that proper service of the complaint in No. 82-158 had
not been made, he proceeded to enter his decision on the habeas corpus petition
because "the better course now appears to be to decide the issue presented, and
allow the parties their rights of appeal." 19 B.R. at 1002

12

Our ruling is not as strict as that requiring state prisoners to exhaust all
available state remedies before habeas corpus relief can be had from the federal
courts, although our holding is born of similar concerns. See Sunal v. Large,
332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947); Riggins v.
United States, 199 U.S. 547, 549-50, 26 S.Ct. 147, 148-149, 50 L.Ed. 303
(1905). The orderly administration of justice requires regularity of procedure.
See In re Chapman, 156 U.S. 211, 218, 15 S.Ct. 331, 333, 39 L.Ed. 401 (1895).
And it is the court's function to enforce the rules designed to ensure regularity
and reliability